What are maternity, paternity and shared parental laws?
These are laws that relate to motherhood (maternity), fatherhood (paternity), and the laws surrounding eligible parents who are sharing responsibility for a child. In short, they refer to the time off that parents are entitled to in relation to a child that they are having or adopting.
What is UK law on maternity and paternity?
The following refers to what you’re legally entitled to, but your employer may offer better or ‘enhanced’ versions of the statutory leave entitlement; always double check your contract.
Statutory maternity leave
If you’re having a baby and are an employee, you have the right to up to 52 weeks’ statutory maternity leave. You are entitled to maternity leave from the first day in your employment and may also be eligible to maternity pay if you give the correct notice. You don’t have to take the full 52 weeks, but the first two weeks (or four weeks for factory workers) following the birth are compulsory.
Statutory maternity leave is the same regardless if you have one child or twins.
Statutory paternity leave
If you are an employee and your partner is having a baby, you have the right to take 1 or 2 weeks paternity leave to support them following the birth, and spend time with the new child.
You are eligible for paternity pay if you have or expect to have responsibility for the child’s upbringing (even if you’re separated from the birth parent), or care of your partner, and be the child’s father and/or married to the civil partner or partner of the mother or birth parent. This includes same-sex partners, too.
Paternity leave is unlike maternity leave in that you must have been continuously employed by the same employer for at least 26 weeks up to any day in the ‘qualifying week’ in order to be eligible. The qualifying week is 5 weeks prior to the week that the baby is expected to be born.
Shared parental leave
Shared parental leave gives two parents more flexible options when it comes to time off to care for a new child that they both have responsibility for in their first year after birth, adoption or a parental order through surrogacy.
Eligible parents can, depending on how much maternity leave the birth parent has taken, or how much adoption leave the primary adopter has taken, get up to 50 weeks of shared parental leave.
The birth parent or adopter must take 2 weeks of leave following the birth or adoption. This then leaves up to 50 weeks to be shared. This allows for options that include both parents taking time off at the same time, one or both parents delaying leave until a later date, or both parents sharing the leave equally but being off at different times.
Adoption leave
If you’re adopting a child or permanently fostering a child and becoming their legal parent, you may be eligible for adoption leave. You have the right to adoption leave from your first day of employment, and it can last up to 52 weeks – the same as statutory maternity leave.
If you’re part of a couple, only one of you can get adoption leave, though the other parent may be eligible for paternity leave and pay. You may also be able to benefit from shared parental leave, as explained above. If you’ve applied for an adoption order for a child you’re having through surrogacy, your rights to adoption leave apply here. The rules are different if you’ve applied for a parental order.
Pay whilst off work
Maternity pay
If you are legally classed as an employee, you can get Statutory Maternity Pay (SMP) if all the following apply:
- you’ve been working continuously for 26 weeks for the same employer before your ‘qualifying week’
- you earn at least £118 a week on average for 8 weeks before your qualifying week
To work out your qualifying week, use a calendar to count 15 weeks back from the week you’re due to have your baby.
SMP is paid for 39 weeks. You’ll receive 90% of your average weekly earnings in the first 6 weeks, and whichever is lower for the next 33 weeks: £172.48 a week, or 90% of your average weekly earnings. The remaining 13 weeks, if you choose to take them, are unpaid, unless your employer offers you ‘enhanced’ maternity pay as part of your contract.
If you’re not eligible for SMP, you might be able to get Maternity Allowance.
Paternity pay
For up to 2 weeks, those eligible for paternity pay can receive whatever is lower: £172.48 a week, or 90% of their average weekly earnings. Again, you may find that your employer offers ‘enhanced’ paternity pay, so it’s well worth checking your contract.
Shared parental pay
Shared parental pay is available to eligible parents for up to 37 weeks. You can claim shared parental pay for any weeks that remain after the birth parent or primary adopter stops their maternity or adoption pay, or maternity allowance. Shared parental pay is, again, paid at whatever is lower: £172.48 a week, or 90% of the average weekly earnings.
Adoption pay
Eligibility for adoption pay relies on you being continuously employed by your employer for at least 26 weeks, and earning at least £123 a week, before tax, for at least 8 weeks before the week you’re matched with a child. You also need to tell your employer and give them the correct notice, and provide proof you’re adopting, or fostering to adopt.
Adoption pay is paid at the same rate and for the same amount of time as maternity pay.
Managing pregnancy and maternity situations
There are situations outside of the birth of a child that relate to pregnancy and maternity, and need to be managed with your employer. This includes leave for appointments during pregnancy, and keeping the workplace safe for those that are pregnant or of childbearing age.
Health checks
A risk assessment should be carried out at every workplace to identify the risks to pregnant people, and those of childbearing age. These risks could include lifting and carrying heavy objects, work-related stress, and exposure to chemicals.
A further risk assessment should be carried out when an employee tells an employer in writing that they’re pregnant, are breastfeeding, or have given birth within the last 6 months.
IVF treatment
Once an employee tells an employer that their IVF treatment has reached the embryo transfer stage, they must treat the employee as pregnant. This means that they’re entitled to maternity leave, pay, and protection from discrimination in the usual way.
Difficult pregnancy
Pregnancy-related illness (such as morning sickness and back pain) should be treated in the same way as regular illness, which includes sick pay entitlement. Appointments related to a difficult pregnancy, however, should not count towards an employee’s sickness absence record – it should be treated separately, and not trigger anything in your absence policy.
In order to be supportive, an employer should consider offering adjustments to an employee’s working times, working location (such as working from home) and break times to ensure they feel comfortable.
If an employee is off work due to a pregnancy-related illness within 4 weeks of the baby being due, maternity leave automatically starts, unless otherwise agreed by both the employee and the employer.
Pregnancy related appointments
Pregnant employees are entitled to time off for antenatal appointments on full pay, including travel time. These can include medical appointments related to a pregnancy, pregnancy related health, fitness or relaxation classes, and mental health and wellbeing sessions.
The law doesn’t stipulate how much time can be taken off, just that it must be a ‘reasonable’ amount.
Planning maternity leave
A plan should be put in place between you and your employer as to how keeping in touch will be managed while you’re on maternity leave – for example, whether you’d prefer emails or phone calls. Legally, an employer should let you know about promotions or job opportunities, redundancies, and reorganisation that could affect your job.
You could also attend up to 10 ‘keeping in touch’ days (after 10, maternity leave automatically ends) at what could be full day pay, to keep in the swing of things.
Returning to work after giving birth
If you’ve taken up to 26 week’s maternity leave only, you have the right to return to the same job that you left. If you’ve taken longer than 26 weeks, you have the right to return to the same job unless there is a genuine reason for your employer to offer you an alternative.
If there’s no other option but for your employer to offer you a different job, the job must be suitable, appropriate and on the same terms with the same pay, benefits, holiday entitlement, location and seniority.
Surrogacy rights at work
If someone else carries and gives birth to a baby for your employee as the intended parent, the employee needs to apply to become the legal parent of the child within 6 months of their birth to be entitled to surrogacy leave, pay and rights.
This takes the form of a parental order (if one intended parent is genetically related to the child), or an adoption order (if the intended parents are not genetically related to the child). Adoption leave, pay and rights then apply.
Ordinary parental leave
Ordinary parental leave applies to the time parents can take off work to look after their child, and is additional to maternity, paternity and adoption leave and shared parental leave, as well as holiday. Parents have the right to unpaid leave if you need to take time off work to look after their child. To be eligible, a parent must be legally classed as an employee, and have been working for the employer for 1 year or more.
Discrimination of pregnant employees
Under the Equality Act 2010, an employee, or someone an employer is considering employing, cannot be discriminated against because of their pregnancy, pregnancy-related illness and any associated time off, or the maternity pay or leave that they take, or plan to take. This includes dismissal, forcing them back to work while on maternity leave, or changing their pay.
Why choose 365 Employment Law?
365 Employment Law can help you to ensure you are treated fairly and within the law as a parent. Talking through matters with a specialist legal advisor can help you proceed with confidence by helping you understand your maternity rights, paternity rights, and pregnancy rights. With many years in the business, our Sussex team, based in Worthing, will be able to advise you at whatever stage of pregnancy, maternity, paternity, adoption or surrogacy you’re currently at.
Frequently Asked Questions
Am I still entitled to maternity leave if I am an agency worker, freelance, self-employed or on a zero-hours contract?
You must still stop work for a minimum of 2 weeks (4 weeks if you do factory work) after giving birth, but you may not get paid for it; you should still check.
What should I do if I’ve been dismissed because I’m pregnant and taking maternity leave?
The law protects against unfair treatment and dismissal if it’s because of your pregnancy and maternity, no matter your length of employment; seek legal advice ASAP.
What happens if a baby arrives early or unexpectedly?
If a baby arrives earlier than expected, maternity leave and pay starts on the day after the birth.
When do you need to tell your employer about pregnancy and maternity leave?
You must tell your employer no later than 15 weeks before the baby is due.
How much ordinary parental leave can you take?
Each parent can take up to 18 weeks of parental leave for each child until the child is 18 years old.
Do I still get holiday entitlement on maternity and paternity leave?
Yes, your holiday still accrues – this includes bank holidays. You can’t take the holiday or receive the holiday pay whilst on maternity or paternity leave, but you can arrange to take the holiday and therefore receive the pay either before or after your maternity or paternity leave.
Does my employer have the right to contact me whilst on maternity or shared parental leave?
Yes, your employer has the right to a reasonable amount of contact with you, and must, by law, make you aware of certain significant changes within a business.